"No person shall be discharged upon the hearing of a writ of habeas corpus in the following cases, to wit: . . . By reason of any misnomer in the warrant or commitment, where the court is satisfied that the party detained is the party charged with the offense." Code 50-116. Held:
Under the facts of this case the court did not err in denying the writ of habeas corpus. Williams v. Sipple, 178 Ga. 61 (172 SE 62).
The record shows that an indictment for larceny from the house was returned by the grand jury of Lowndes County against "Tommy Gilbert" on November 19, 1958, and that another indictment for burglary was returned by the grand jury against "Tommie Gilbert" on the same date. On November 24, 1958, "Tommie Gilbert" entered pleas of guilty to both charges. Sentences were entered against "Tommy Gilbert" on the larceny from the house charge and "Tommie Gilbert" on the burglary charge. Pursuant to those sentences Thomas B. Gilbert was committed to the State Prison in Reidsville.
Thomas B. Gilbert filed his petition for a writ of habeas corpus in the Tattnall County Superior Court on March 31, 1961, alleging that he was being unlawfully detained in the State Prison at Reidsville as indictments and sentences naming Thomas B. Gilbert were not in existence and because Thomas B. Gilbert had never been arrested, charged or indicted by a grand jury.
The petition did not allege that Thomas B. Gilbert was not the same person as "Tommie Gilbert" or "Tommy Gilbert" and nowhere in the record can there be found a contention by Thomas B. Gilbert that he is not the person named in the indictments and sentences above referred to.
The trial court denied the petition, and Thomas B. Gilbert assigned error on the ground that the court erred in denying the writ.